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Difference between revisions of "BC Human Rights Code (6:III)"
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BC Human Rights Code (6:III) (view source)
Revision as of 21:42, 20 December 2022
, 21:42, 20 December 2022→6. Physical or Mental Disability
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Disability is not defined in the HRC. However, the concept of physical disability, for human rights purposes, generally indicates a “physiological state that is involuntary, has some degree of permanence, and impairs the person’s ability, in some measure, to carry out the normal functions of life” (''[https://www.canlii.org/en/bc/bchrt/doc/1994/1994canlii18445/1994canlii18445.html Boyce v New Westminister (City)] (1994)'', 24 CHRR D/441 at para 50 [''Boyce'']). More recent cases have confirmed that a disability must have a certain level of severity, permanence or persistence: see e.g., ''[https://www.canlii.org/en/bc/bchrt/doc/2014/2014bchrt270/2014bchrt270.html Li v Aluma Systems and another]'', 2014 BCHRT 270 at para 41. In ''[https://www.canlii.org/en/bc/bchrt/doc/2003/2003bchrt14/2003bchrt14.html Morris v BC Rail]'', 2003 BCHRT 14 at para 214 [''Morris''], the Tribunal set out the following three considerations for assessing whether an individual has a physical or mental disability: | Disability is not defined in the HRC. However, the concept of physical disability, for human rights purposes, generally indicates a “physiological state that is involuntary, has some degree of permanence, and impairs the person’s ability, in some measure, to carry out the normal functions of life” (''[https://www.canlii.org/en/bc/bchrt/doc/1994/1994canlii18445/1994canlii18445.html Boyce v New Westminister (City)] (1994)'', 24 CHRR D/441 at para 50 [''Boyce'']). More recent cases have confirmed that a disability must have a certain level of severity, permanence or persistence: see e.g., ''[https://www.canlii.org/en/bc/bchrt/doc/2014/2014bchrt270/2014bchrt270.html Li v Aluma Systems and another]'', 2014 BCHRT 270 at para 41. In ''[https://www.canlii.org/en/bc/bchrt/doc/2003/2003bchrt14/2003bchrt14.html Morris v BC Rail]'', 2003 BCHRT 14 at para 214 [''Morris''], the Tribunal set out the following three considerations for assessing whether an individual has a physical or mental disability: | ||
# | #[T]he individual’s physical or mental impairment, if any; | ||
# | #[T]he functional limitations, if any, which result from that impairment; and | ||
# | #[T]he social, legislative or other response to that impairment and/or limitations… assessed in light of the concepts of human dignity, respect and the right to equality. | ||
Furthermore, according to ''Morris'' at para 207, proof of impairment and/or limitation, while relevant, will not be required in all cases. See ''[https://www.canlii.org/en/bc/bchrt/doc/2013/2013bchrt40/2013bchrt40.html McGowan v Pretty Estates]'', 2013 BCHRT 40 at para 26-28 for more information. | Furthermore, according to ''Morris'' at para 207, proof of impairment and/or limitation, while relevant, will not be required in all cases. See ''[https://www.canlii.org/en/bc/bchrt/doc/2013/2013bchrt40/2013bchrt40.html McGowan v Pretty Estates]'', 2013 BCHRT 40 at para 26-28 for more information. | ||
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As noted above, protection from discrimination due to physical disability extends to discrimination on the basis of a perceived propensity to become disabled in the future. In ''London Life Insurance'' at para 46, the Tribunal found that the HRC prohibited discrimination against a person based on the fact that his spouse was HIV positive. Protection under this ground has also been extended to those who are suffering from addictions issues. For example, ''[https://www.canlii.org/en/bc/bchrt/doc/1995/1995canlii18183/1995canlii18183.html Handfield v North Thompson School District No 26]'', [1995] 25 CHRR D/452 at paras 139–143 recognized alcoholism as both a physical and mental disability. | As noted above, protection from discrimination due to physical disability extends to discrimination on the basis of a perceived propensity to become disabled in the future. In ''London Life Insurance'' at para 46, the Tribunal found that the HRC prohibited discrimination against a person based on the fact that his spouse was HIV positive. Protection under this ground has also been extended to those who are suffering from addictions issues. For example, ''[https://www.canlii.org/en/bc/bchrt/doc/1995/1995canlii18183/1995canlii18183.html Handfield v North Thompson School District No 26]'', [1995] 25 CHRR D/452 at paras 139–143 recognized alcoholism as both a physical and mental disability. | ||
Where a behaviour or policy adversely affects a protected group or person, either directly or indirectly due to their disability (or any other protected characteristic), there is a duty to accommodate, meaning that all reasonable efforts must be taken to accommodate the group or person up to the point of undue hardship. Examples include installing wheelchair access (''[https://www.canlii.org/en/bc/bchrt/doc/2018/2018bchrt174/2018bchrt174.html Walsh v Pink]'', 2018 BCHRT 174 at paras 104-111) and safety handrails (''[https://www.canlii.org/en/bc/bchrt/doc/2006/2006bchrt62/2006bchrt62.html Ferguson v Kimpton]'', 2006 BCHRT 62 at para 68). The duty to accommodate may also include allowing workers to return gradually to the workplace after an injury or serious illness. | Where a behaviour or policy adversely affects a protected group or person, either directly or indirectly due to their disability (or any other protected characteristic), there is a duty to accommodate, meaning that all reasonable efforts must be taken to accommodate the group or person up to the point of undue hardship. Examples include installing wheelchair access (''[https://www.canlii.org/en/bc/bchrt/doc/2018/2018bchrt174/2018bchrt174.html Walsh v Pink]'', 2018 BCHRT 174 at paras 104-111) and safety handrails (''[https://www.canlii.org/en/bc/bchrt/doc/2006/2006bchrt62/2006bchrt62.html Ferguson v Kimpton]'', 2006 BCHRT 62 at para 68). The duty to accommodate may also include allowing workers to return gradually to the workplace after an injury or serious illness. | ||
=== 7. Sexual Orientation === | === 7. Sexual Orientation === | ||
